MEHMUDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE challenge in this appeal is to the impugned judgment and order dated 26/3/2007 rendered by Ld. Special Judge [NDPS], Surat, in Special [NDPS] Case No. 9 of 2002, whereby the appellant original accused came to be convicted for the offence punishable under section 22 read with section 8[c] of the Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter referred to as 'the NDPS Act'] and was sentenced to undergo rigorous imprisonment [RI] for 10 years and fine of Rs.1,00,000/- and in default of payment of fine, RI for 2 years.

(2.) THE prosecution case in nut-shell, is that Jasvidarsinh Dharamsinh Ramgadhiya was serving as Police Inspector in Salabatpura Police Station, Surat City, received an information at about 14-00 hours on 10/8/2002 that the lady accused had kept Brown Sugar in her home situated in the area called Indarpura at Surat and was doing business of selling the same. Upon receipt of such information, the information was reduced into writing and was forwarded to his higher officer and thereafter, panchas were called. Preliminary panchnama was drawn and Police Inspector Mr. Ramgadhiya along with two panchas and other police personnel including a lady constable left the police station for the raid. After they reached to the place of information, the lady accused was found in her home. She was informed about the information which had been received and she was further informed that it was necessary to search her house including her person and if she desires that some Gazetted Officer or Magistrate should be kept present at the relevant time, then she had the option to request so, to which she did not opt for the same. When the personal search of the lady accused through lady panch Kavitaben and lady constable Ashaben was made, one packet covered under a plastic was found. Through the checking by mobile FSL, the contents in the packet was found to be Brown Sugar [Heroin], weighing 89 Gram and 450 Miligram. Samples were collected out of the contraband article and were sealed and packed. Detailed panchnama was drawn in the house of the accused. P I Mr. Ramgadhiya lodged FIR regarding the offence and his FIR was registered. During the course of police investigation, statements of material witnesses were recorded and samples were forwarded to the FSL, FSL report was collected and after conclusion of the investigation, charge-sheet came to be filed in Special Court [NDPS], Surat.

(3.) MR. R.M. Agrawal, Ld. Advocate for the appellant accused, at the outset, submitted that he does not challenge the order of conviction on merits. However, he submitted that looking to the quantity of the contraband article Heroin recovered from the accused, which is 89 gram and 450 miligram, the maximum sentence being RI for 10 years and maximum fine being Rs.1 lac imposed on her is disproportionate to and is not commensurate with the quantity of contraband article recovered from her. MR. Agrawal at the first instance, drew our attention to serial no. 56 in the table contained under the notification specifying small quantity and commercial quantity pertaining to heroin, wherein the small quantity is stated to be upto 5 Gram and commercial quantity is stated to be 250 Gram and more. MR. Agrawal, Ld. Advocate submitted that in the instance case, the quantity seized is more than small quantity, but much lesser than commercial quantity, which is intermittent quantity. MR. Agrawal then drew our attention to section 22 sub-clause [b] of the NDPS Act, wherein it is stated that where the contravention involves quantity less than commercial quantity, but greater than small quantity, the punishment prescribed is RI for a term which may extend to 10 years and with fine which may extend to Rs.1 lac. On the above premises, MR. Agrawal submitted that in the instant case, the trial Court awarded the maximum punishment prescribed without assigning any reason.